ACtion Magazine - May 2017 - 10

Keith Leonard,
Esquire

Nineteen Eighty-Four
a reality in 2017

ervices such as OnStar are available in
various motor vehicles to provide the
owner with security, navigation, emergency, and diagnostic features relating to the vehicle. Recently developed technological features,
such as lane departure warnings and automatic
emergency braking systems, are also touted to
car buyers as features that will protect the driver,
his or her passengers, and others on the road
from accidents, injuries or worse.
What happens when technology is used by
a company to track its employees? GPS technology allows, among other things, the whereabouts of a vehicle to be tracked and located at
any given time. Readers of this column have
read past columns of mine where the hazards of
distracted driving have been examined. Before
it became the name of a television series, "Big
Brother" referred to a fictional character in the
novel Nineteen Eighty-Four by George Orwell.
In the society described in the novel, every citizen was under constant surveillance by the government. When the book was published in 1949,
it may have been thought to be far-fetched, but
not so much anymore in a world where drones,
smart phones, computers, and televisions can be
used to spy on us.
It is certainly reasonable for a business to
be concerned about the uses of its property.
Technology permits employers to be able to
track their field or mobile employees' locations
through GPS devices in vehicles. There are legitimate business reasons for doing so, including
increased efficiency among its employees, par-

ticularly delivery employees; monitoring compliance with labor laws such as overtime work;
also monitoring compliance with traffic safety
regulations; making sure that employment
policies are being followed; and even conducting internal investigations of employees where
wrongdoing is suspected. With those interests
in mind, can a company cross over the line and
become its own Big Brother to its employees?
I think most everyone recognizes, even if he
or she does not agree to the intrusions, that we
do not have the same expectations of privacy everywhere we are or may go in our lives. Search
warrants are not commonly required for police
to search school lockers. And I do not think that
you will successfully prevent the Transportation
Security Administration (TSA) from searching
you or your belongings before boarding a commercial airline flight. Even attending a professional sporting event subjects you to a pat-down
search and possibly even one conducted by an
employee of the team using a wand metal detector.
However, there are a number of states that
have laws preventing the use of GPS tracking
devices to monitor the location of a vehicle.
Among the states with such laws are Illinois,
California, Connecticut, Minnesota, Tennessee,
and Texas. Not surprising, there is commonly
an exception to such a regulation for law enforcement personnel. The other common exception is when the owner of the device or vehicle
consents to the attachment of a tracking device.
In instances of a company-owned vehicle used

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ACTION * May 2017

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by an employee, the consent of the owner is
clear because it is the employer who owns the
vehicle. In the few reported decisions on the issue, courts have ruled that an employee driving
an employer-owned vehicle is not able to state a
claim for invasion of privacy when the employer tracks the whereabouts of the vehicle. There is
not the same reasonable expectation of privacy
while traveling in a motor vehicle that there is
when you are in your home.
It is a different story when an employer
wishes to track employees who use their personal vehicles for company business. The business interests of the employer may be the same,
but courts have recognized a need for a greater
protection of an employee's privacy interests in
that situation. Even more problematic for a business is to extend the tracking of employees to
non-work hours. There is clearly a greater risk
that such tracking can be an invasion of the
employee's privacy, whether the tracking is
done via employer-owned or employee-owned
equipment.
Employers should give notice to employees
of the tracking and obtain their consent. Furthermore, the tracking should be limited to working
hours, the information collected through GPS
monitoring should be focused on an employee's
job performance and it should be disseminated
only to employees who have a legitimate business reason for knowing the information. Being
watched is a lot more common today than even
twenty years ago. ❆

Remember that laws are constantly
changing and are often not uniform
throughout the United States. Do
not place unqualified reliance on the
information in this article. Always
contact legal counsel for detailed
advice.
If you have a particular issue, law
or problem you would like to see
addressed in a future column, please
contact me at KLeonard@LeonardSciolla.com, or Leonard, Sciolla,
Hutchison, Leonard & Tinari, LLP,
215-567-1530.

http://www.dealerautomotive.com

Table of Contents for the Digital Edition of ACtion Magazine - May 2017